Tuesday, September 09, 2008

Edinburgh University honorary graduate Joanne Kathleen Rowling (right) has won her case against Steven Vander Ark, the author of the Harry Potter Lexicon (the site is now down). I have been following this case with interest, as I believe it is a prime example of the growing conflict between traditional copyright owners and fans generating their own content based on existing material. My opinion has been that while content owners are usually happy to allow fans to tinker with the source material, they will sue if the fan crosses the commercial line.

The facts of the case were rather straightforward. Steven Vander Ark maintained the website called the Harry Potter Lexicon for several years, amassing an impressive amount of background information about every single aspect of the Potterverse. The Lexicon proved to be such a good resource that it was reputedly used by Warner Bros in their Harry Potter productions. However, when Vander Ark made a book deal with obscure publisher RDR Books to turn the Lexicon site into a reference tome, Rowling sued for copyright infringement faster than you can say "Expelliarmus". The Lexicon argued that this was a derivative work, a reference based on the original, and therefore fell within fair use.

The U.S. Disctrict Court of the Southern District of New York has now granted an injunction against the Lexicon. The main legal question at the heart of the District Court's reasoning was whether the Lexicon was merely a reference guide to a work of fiction (and therefore a derivative work under American copyright law), or if it lacked originality and infringed JK Rowling's works. The District Court first tried to determine the nature of the Lexicon:

"The Lexicon entries cull every item and character that appears in the Harry Potter works, no matter if it plays a significant or insignificant role in the story. [...] Each entry, with the exception of the shortest ones, gathers and synthesizes pieces of information relating to its subject that appear scattered across the Harry Potter novels, the companion books, The Daily Prophet newsletters, Famous Wizard Cards, and published interviews of Rowling. The types of information contained in the entries include descriptions of the subject’s attributes, role in the story, relationship to other characters or things, and events involving the subject. Repositories of such information, the entries seek to give as complete a picture as possible of each item or character in the Harry Potter world, many of which appear only sporadically throughout the series or in various sources of Harry Potter material."

This seems like an impressive undertaking, with considerable work and thought going into it ("sweat of the brow" anyone?) The District Court agreed that this was akin to the many reference works accompanying other multi-volume Fantasy series, such as The Lord of the Rings and Narnia. However, the court found some problems with the Lexicon, namely:

"Although it is difficult to quantify how much of the language in the Lexicon is directly lifted from the Harry Potter novels and companion books, the Lexicon indeed contains at least a troubling amount of direct quotation or close paraphrasing of Rowling’s original language. The Lexicon occasionally uses quotation marks to indicate Rowling’s language, but more often the original language is copied without quotation marks, often making it difficult to know which words are Rowling’s and which are Vander Ark’s."

The District Court analyses leading case law in the issue of transformative and derivative works (such as Castle Rock Entertainment v. Carol Publishing Group). The District Court agreed with the defendants that the Lexicon conveyed “new information, new aesthetics, new insights and understandings” as defined in Caste Rock. However, the court points out that:

"The transformative character of the Lexicon is diminished, however, because the Lexicon’s use of the original Harry Potter works is not consistently transformative. The Lexicon’s use lacks transformative character where the Lexicon entries fail to “minimize the expressive value” of the original expression. A finding of verbatim copying in excess of what is reasonably necessary diminishes a finding of a transformative use. As discussed more fully in analyzing the “amount and substantiality” factor, the Lexicon copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide."

In other words... plagiarism! The Lexicon's undoing may be the very lack of originality displayed by the copy-and paste culture.

While I was naturally sympathetic to Vander Ark and the Lexicon, the injunction is very persuasive in its reasoning. However, it must be noted that American originality thresholds are higher, and I wonder if a different decision might have been reached this side of the pond.

Anyway, Rowling has taken her wand and said Avada Kedavra! The Lexicon drops dead.